Case Study:

Greyhound Racing South Australia Ltd

Legal Dispute

Greyhound Racing South Australia (GRSA) had embarked on a $5million construction project to develop a new racetrack at Murray Bridge.

In the midst of major building construction and earthworks, they received a claim for an additional $1 million from the construction company they had contracted to complete the works.

Although the contractor’s claim contained more than 1,700 pages of evidence, the adjudication process, as legislated in the Building and Construction Industry Security of Payment Act 2009 (SOPA), meant that GRSA had only one week in which to lodge their response to the claim.

At this point, GRSA hired Ezra Legal to lead their response to the claim, utilizing our expertise in construction law.

Missing the lodgement deadline was not an option for our client. This would have required the SOPA adjudicator to make a decision based solely on the contractor’s submission and the likelihood of GRSA having to meet their additional pay demands. Whilst our client could have sought to retrieve any additional payment through the courts, this would have chewed-up valuable time and legal fees, and had a significant detrimental impact on their cashflows.

Our Approach

Within 7 days, the team at Ezra Legal prepared and filed a comprehensive response to the contractor’s adjudication application, drawing on the expertise of a consultant engineer, an architect, and a senior construction barrister. Our response to the application was based on four key strategies

  • Firstly, an overarching attack on the claim made by the contractor that there were “latent conditions” that were unaccounted for in the contracted price that substantially increased the cost of construction;
  • Secondly, the use of specialist reports and statements to lodge a detailed legal attack on the larger elements of the claim, including contractual construction, estoppel and waiver provisions;
  • Thirdly, in the event that the broader points failed to win over the adjudicator, a detailed legal attack on the larger individual costs claimed by the contractor; and
  • Fourthly, the reliance on expert reports from a consultant engineer on site conditions and construction design, and the project’s architect on correspondence with the contractor that supported our client’s position.

The Outcomes for Our Client

The adjudicator’s decision was extremely favourable to our client. The contractor was awarded less than a 1% of their claim and required to pay the adjudicator’s costs.

Ultimately, the adjudicator determined that the contractor:

  • had not satisfactorily proved they had completed a number of the works claimed for;
  • had not complied with proper notice provisions within the contract regarding latent conditions; and
  • some works that the contractor claimed for were already included in the original construction contract and the original price.

Our approach highlights the wisdom of attacking a claim from multiple overlapping angles, using subject matter experts to support a legal argument, and building in redundancies to any legal dispute position.

"The way Ezra Legal supported GRSA to respond to this legal dispute was exemplary. If faced with a similar problem in the future, I would have no hesitation in re-engaging Michael Fabbro and his team."
Matt Corby, CEO, Greyhound Racing South Australia

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